Sunday, January 17, 2016

Islamic law affects all of us

thestaronline


by wong chun wai 
The Indira Gandhi case has broken the hearts of many Malaysians, including many Muslims, who understand what justice is all about.

I HAVE always thought that the court is one place where we can seek redress and justice. Where righteousness, uprightness and compassion flow alongside the stream of justice, even as the law is interpreted in ways the common people may not fully understand.

How naïve I have been. This could be the result of watching too many Chinese dramas on the life of the legendary Justice Bao, more commonly known as Bao Gong.

The judge was an honest and principled judge during the reign of Emperor Renzong in China’s Song Dynasty.

His court decisions included sentencing his own uncle, impeaching an uncle of Emperor Renzong’s favourite concubine, and punishing powerful families.

According to one article, his appointment from 1057 to 1058 as the prefect of Song’s capital Kaifeng, where he initiated a number of changes to better hear the grievances of the people, made him a legendary figure.

Justice Bao was always available at all times to the downtrodden and he stood up against the powerful landlords.

Their political connections meant nothing to him as he dispensed justice – as what judges are supposed to do. He was only fearful of God and certainly not ordinary men, no matter how influential they were.

Common sense, compassion and justice are surely noble values that we seek from our men and women on the bench.

Surely, not those who are fearful of making decisions, preferring to pass the responsibility to another court, especially when it involves matters of the faith, or at least that’s the perception of many Malaysians now.

Let’s deal with the M. Indira Gandhi issue as sensible human beings. Imagine the kindergarten teacher as your daughter, your mother or simply as your neighbour. Imagine her pouring out her frustrations to you as a listener.

It’s a case which can happen to any of us, and if the Federal Court – her last hurdle – upholds the Court of Appeal’s decision, then that’s the end of the road. Not just for Indira Gandhi, but it would have an impact on all future cases.

She married her husband K. Patmanathan, in a civil marriage, like most Malaysians and then in 2009, he decided to convert to Islam. This is not a disputed fact: Theirs was a civil marriage. She didn’t marry a Muslim.

Upon his conversion, he unilaterally went to the Islamic authorities to convert their three children – Prasana Diksa, then barely a year old, Tevi Darsiny, then 12, and Karan Dinish, then 11 – to Islam. The two older children have, however, remained with their mother.

Prasana turned seven last year. But the mother has only seen her once, since she was taken away, and that was at a court hearing at the Ipoh High Court in 2009 when the toddler was one year and six months old. The High Court had ruled in her favour, but the Court of Appeal by a majority of 2-1 has overturned that ruling.

She has been unable to speak to the child and her text messages to the estranged husband’s phone have been left unanswered.

Just for a second, think about it. A mother suddenly loses contact with her child for seven years. No one seems to be able to find the husband. It’s a classic case of abduction, as far as she is concerned, and she can’t seem to get any help.

This is Malaysia. No one just disappears into the thin air and we cannot be expected to believe that Patmanathan, now known as Muhammad Riduan Abdullah, cannot be found.

And now Malaysians are told by the learned judges of the Court of Appeal that this is a religious matter and that issues regarding Muslim conversion are exclusively the jurisdiction of the Syariah Court.

Now, you and I don’t have to get a law degree to know that non-Muslims cannot appear in the Syariah Court, so how on earth is Indira Gandhi going to seek redress in the Islamic courts?

Malaysia hasn’t become an Islamic State and the people, especially non-Muslims, can still challenge contentious matters in the civil courts.

So, this is a lesson for non-Muslims who actually believe that Islamic laws won’t affect non-Muslims and are meant only for Muslims.

We live in a plural society and even as Malaysia becomes more Islamic and mono ethnic, non-Muslims still have their rights, as guaranteed in the Federal Constitution.

The people also have the right to question the decisions of the courts including the Indira Gandhi case. That is surely not contempt of court and for sure not seditious.

We have not gone the dictatorial way. Our leaders can be criticised in a democratic society. Even ridiculed.

The case has broken the hearts of many Malaysians, including many Muslims, who understand what justice is all about.

Now, Indira Gandhi has her final shot – she will be appealing the Court of Appeal majority decision, and is expected to file the appeal within the next two to three weeks or sooner.

The Federal Court should expedite the hearing and empanel a full bench to hear this appeal as any decision it makes will have far-reaching consequences on the nation.

The majority decided that from a subject matter approach whether a person was a Muslim or not was only to be decided by the Syariah Court.

In his dissenting decision, Justice Hamid Sultan Abu Backer said the Administration of Religion of Islam (Perak) Enactment 2004, the law that allowed for the conversion, could be questioned by a civil court.

The panel set aside the Ipoh High Court’s decision to quash the conversion, and made no order as to costs.

Both the majority and the minority decisions (the full judgments are available at www.kehakiman.gov.my) will be heavily scrutinised in the days to come, and we should be thankful that we are also allowed to have our say as the common people.

In the court of public opinion, this is not just about lawyers slugging it out in the courts. With respect, this is not just a matter of religion. It is a case of whether non-Muslims can find a competent, fair and suitable court to hear their cases involving unilateral conversion.

Malaysians, especially non-Muslims, have a right to ask why they should be subjected to the jurisdiction of a Syariah Court and why are the rights of a non-Muslim not protected under the Federal Constitution?

More importantly, when it comes to the conversion of minors without the parents’ consent, should the court, in such circumstances, restrict itself in the interpretation of the word “parent” in the singular to a narrow interpretation when the results can be unjust?

Our judges and leaders cannot run away from their responsibilities. They have been put in places of responsibility and accountability to make sure justice is done. We will all be answerable to the Almighty in the end.





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